JESSE S. CHERRY, APPELLANT,
v.
WILLIAM H. MCCLELLAN, APPELLEE

Fla. 2d DCA | 1971-02-12
No. 70-171
LILES, A. C. J., and McNULTY, J., concur.
244 So. 2d 168 Florida District Court of Appeal, Second District (1971) Positive Treatment
Cited by 2 cases
Topics
Release Of Liability Excusable Neglect

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Affirmed.

LILES, A. C. J., and McNULTY, J., concur.

MANN, J., dissents with opinion.

MANN, Judge

(dissenting).

Appellant obtained a release from appel-lee on a form provided by the Financial Responsibility Division of the office of the State Treasurer and Insurance Commissioner. Later, appellee’s insurance carrier, as subrogee, brought an action in his name seeking damages. Appellant did not answer, and judgment was entered by default. A few months later she filed a petition asserting that she was a Negro female ignorant of the law and procedure involved and that she had a release, which she attached, which led her to believe that the judgment against her was entered unjustly. I agree.

Any citizen is entitled to assume that a full release, executed on a form provided for the purpose, absolves her of liability, and one who is ignorant of legal procedures may think herself on sound ground in ignoring the complaint served on her. While this neglect would not be excusable in a lawyer, it certainly would be as to the unlearned citizen possessed of a release duly executed, and the petition should have been granted. Our Supreme Court has made it clear that “if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.” North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849.

I would reverse.

Dissent
MANN, Judge

MANN, Judge

(dissenting).

Appellant obtained a release from appel-lee on a form provided by the Financial Responsibility Division of the office of the State Treasurer and Insurance Commissioner. Later, appellee’s insurance carrier, as subrogee, brought an action in his name seeking damages. Appellant did not answer, and judgment was entered by default. A few months later she filed a petition asserting that she was a Negro female ignorant of the law and procedure involved and that she had a release, which she attached, which led her to believe that the judgment against her was entered unjustly. I agree.

Any citizen is entitled to assume that a full release, executed on a form provided for the purpose, absolves her of liability, and one who is ignorant of legal procedures may think herself on sound ground in ignoring the complaint served on her. While this neglect would not be excusable in a lawyer, it certainly would be as to the unlearned citizen possessed of a release duly executed, and the petition should have been granted. Our Supreme Court has made it clear that “if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.” North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So. 2d 849.

I would reverse.

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    …awarded to a wife in a divorce judgment? The trial court denied such relief. We reverse and remand upon authority of Orr v. Orr, 1939, 141 Fla. 112, 192 So. 466; Harrison v. Harrison, Fla.App.1965, 178 So. 2d 889; DeFrances v. Knowles, Fla.App.1970, 244 So. 2d 168; State ex rel. Krueger v. Stone, 1939, 137 Fla. 498, 188 So. 575; 10A Fla. Jur., Dissolution of Marriage, § 238. The fees in question stemmed from an agreement made between the parties, which was incorporated in the final judgment. It was agreed, “…

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